FILED

December 21, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE ) FOR PUBLICATION

)

Appellee ) FILED: DECEMBER 21, 1998 

)

v. ) SUMNER COUNTY 

)

BOBBY VINCENT BLACKMON ) HON. JANE WHEATCRAFT and

 ) HON. FRED A. KELLY, III

Appellant ) Judge

)

 ) NO. 01-S-01-9709-CR-00187

For Appellant: For Appellee:

MARK W. HENDERSON JOHN KNOX WALKUP

Nashville, TN Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

DOUGLAS D. HIMES

Assistant Attorney General

Nashville, TN

LAWRENCE RAY WHITLEY

District Attorney General

DEE DAVID GAY

KATHI PHILLIPS

Assistant District Attorney General

Gallatin, TN

OPINION

REVERSED IN PART, AFFIRMED IN PART BIRCH, J.
1Tenn. Const. art. VI, § 11.

2U.S. Const. amends. V, XIV; Tenn. Const. art. I, § 10. 

3Tenn. Code Ann. § 39-17-417(a)(4)(1991).

4Tenn. Code Ann. § 53-11-451 (1991 & Supp. 1997).

2

We granted permission to appeal pursuant to Tenn. R. App.

P. 11 to the appellant, Bobby Vincent Blackmon, in order to

determine whether, and if so, under what circumstances, the right

to be tried by a judge who is constitutionally qualified1 can be

waived. We address also the appellant’s contention that the

judgment of forfeiture entered against his vehicle seized incident

to his arrest on April 20, 1993, constitutes “punishment,” such as

would violate the constitutional prohibitions2 against double

jeopardy.

Following a careful consideration of the issues, we

conclude that a defendant can, indeed, waive the right to a

constitutionally qualified judge. In the case under review,

however, the record does not support a waiver of this right. We

find also that there is no double jeopardy violation in the

forfeiture proceedings.

I

Blackmon was arrested in Sumner County for possession of

a Schedule II controlled substance with intent to sell.3 His

vehicle was confiscated upon arrest and later forfeited to the

State.4
3

Judge Jane Wheatcraft, then a judge of the General

Sessions Court, conducted Blackmon’s preliminary hearing. At its

conclusion, she found probable cause and bound the charges to the

grand jury, and the defendant was indicted. By the time the case

was set for jury trial on February 14, 1995, Judge Wheatcraft had

become Judge of the Criminal Court for Sumner County. In that

capacity, she conducted Blackmon’s trial on the indicted charges.

The jury convicted Blackmon, but he has not yet been sentenced on

this conviction.

Blackmon filed a motion for arrest of judgment on May 25,

1995, seeking to invalidate the conviction. He insisted that it

violated Tenn. Const. art. VI, § 11, because Judge Wheatcraft had

conducted his preliminary hearing and bond reduction hearing in

General Sessions Court and later conducted his trial in Criminal

Court. Judge Wheatcraft heard the motion on June 20, 1995, and

entered an order granting Blackmon a new trial. Judge Wheatcraft

entered an order of recusal from all further proceedings in this

cause.

On July 18, 1995, the State filed an application for

permission for an interlocutory appeal in an effort to vacate the

order granting a new trial. Judge Wheatcraft granted the State’s

request for an interlocutory appeal on the judge-qualification

issue. Judge Fred A. Kelly, sitting by designation, considered

Blackmon’s motion to dismiss for an alleged double jeopardy

violation. He overruled that motion and granted the motion for an

interlocutory appeal on the double jeopardy issue.
5Blackmon was represented by Mark Henderson, a public

defender. Blackmon argues that because Henderson was a public

defender, he was a state agent and could not waive Blackmon’s

constitutional right. Blackmon relies upon Hamilton v. State, 218

Tenn. 317, 320, 403 S.W.2d 302, 303 (Tenn. 1966), which states

“even if consent to waive this constitutional right of defendant

were permissible, defendant was represented in this ‘consent’ by

the Public Defender, a State agent.” Because we hold that Blackmon

did not consent to the waiver, we need not address the merits of

this contention.

4

On interlocutory appeal, the Court of Criminal Appeals

reversed the ruling awarding Blackmon a new trial and reinstated

the conviction. The court held that Blackmon’s counsel5 waived the

benefit of Tenn. Const. art. VI, § 11, thereby vesting Judge

Wheatcraft with jurisdiction to conduct the trial. Additionally,

the court affirmed the order overruling Blackmon’s motion to

dismiss the forfeiture on double jeopardy grounds, relying on the

decision of the United States Supreme Court in United States v.

Ursery, 518 U.S. 267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996).

II

We have addressed the judge-qualification issue before.

In State v. Henderson, 442 S.W.2d 629 (Tenn. 1969), the Court held

that the constitutional right to a constitutionally qualified judge

could be waived. The Court based its decision on the clear

language of Tenn. Const. art. VI, § 11, which provides: “No Judge

of the Supreme or Inferior Courts shall preside on the trial of any

cause . . . in which he [or she] may have presided in any inferior

Court, except by consent of all the parties.” Further, Tenn. Code

Ann. § 17-2-101(4) (1991) provides: “No judge or chancellor shall

be competent, except by consent of all parties, to sit in any of
5

the following cases: [When the judge or chancellor] . . . [h]as

presided on the trial in an inferior court. . . .” Relying upon

House v. State, 911 S.W.2d 705 (Tenn. 1995), the Court of Criminal

Appeals found that the decision of Blackmon’s counsel to waive the

judge’s qualification was imputable to Blackmon and, hence,

binding. We disagree. Because Blackmon had the right to waive the

constitutional and statutory qualification of the trial judge, we

must determine whether he exercised that right.

The constitutional and statutory provisions relating to

a judge’s qualification are directed towards ensuring the

impartiality of a judge. We have held that the right to an

impartial judge is a fundamental constitutional right. State v.

Benson, 973 S.W.2d 202, 205 (Tenn. 1998). Due to our long-standing

presumption against waiver of fundamental constitional rights,

these rights must be personally waived by a defendant. State v.

Muse, 967 S.W.2d 764, 767 (Tenn. 1998). 

In order for a waiver of a constitutionally granted right

to be valid, it must be “voluntarily, knowingly, and intelligently”

given. State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992).

The knowing and voluntary waiver includes the intentional

relinquishment or abandonment of known rights. State v. Pearson,

858 S.W.2d 879, 887 (Tenn. 1993); Johnson v. State, 834 S.W.2d 922,

923 (Tenn. 1992); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.

1019, 1023, 82 L. Ed. 1461, 1466 (1938). The record of a waiver of

a defendant’s right “must affirmatively demonstrate that his

decision was both voluntary and knowledgeable, i.e., that he has
6

been made aware of the significant consequences of such a [waiver];

otherwise, it will not amount to an ‘intentional abandonment of a

known right.’” State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977).

The Court will not presume a waiver of important constitutional

rights from a silent record. Boykin v. Alabama, 395 U.S. 238, 242,

89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274, 279 (1969).

In the case under submission, the record does not include

evidence sufficient to demonstrate a “knowledgeable” waiver by

Blackmon. The record does not show that Blackmon understood the

effect of the waiver and the attendant constitutional implications.

This is evidenced by counsel’s discussion with the court:

Q: [The Court] Did you discuss the

jurisdictional issue with your client?

A: [Mr. Henderson] I did. I didn’t

discuss the Hamilton case. To be truthful, I

didn’t know about it.

Q: Did you discuss the fact that I had

had the preliminary hearing?

A: He asked me about that, and I told him

I believed you would be a fair and impartial

judge, and I believe you were a fair and

impartial judge. I disagree with some of your

rulings. We will have those kinds of

differences over the years, I expect.

This is not the point, Judge. If you

look at the Hamilton case --

Q: You discussed the fact I had the

preliminary hearing. I had forgotten. I

thought I had just had a bond hearing. That

is neither here nor there. What did you

determine? Not to raise that issue?

A: I told him that I believed you would

be a fair and impartial jurist. And it was my

decision, not his, to go forward and have a

trial of the case.
7

Q: Did he concur with you? I mean did he

say that’s all right?

A: He didn’t say one way or the other

anything. I was counsel, and that is what I

decided to do, and that was the end of it.

Q: He understood at that time he had a

right to raise that issue, I take it.

A: I don’t know what he understood at

that time.

Q: You talked to him about it?

A: I talked to him about it, but as far

as -- it was my opinion that his case would be

better served by going to trial at that time

before you. I felt like you would be fair and

impartial, and I felt like we would get a fair

hearing. And he relied totally on my advice

at that time. . . .

What the record demonstrates is that counsel’s

conversation with Blackmon about this issue was focused on the

fairness of the trial judge not the significance of the waiver. It

further demonstrates counsel’s failure to clearly advise Blackmon

that a different judge would conduct his trial if he declined to

waive the qualification issue. In our view, Blackmon did not waive

his right to a constitutionally qualified judge. This right does

not implicate principles of fairness over which the judge is the

arbiter--it chiefly concerns a judge’s qualification--a matter to

be decided under the constitution and subject to waiver by the

defendant.

III
8

We move now to address Blackmon’s claim that the

forfeiture of his automobile, seized incident to his arrest on the

instant charges, is “punishment” for the purposes of the double

jeopardy clauses of the United States and the Tennessee

Constitutions, thereby rendering additional punishment

unconstitutional.

The double jeopardy clause of the Fifth Amendment to the

United States Constitution, applicable to the states through the

Fourteenth Amendment, provides that no person shall “be subject for

the same offense to be twice put in jeopardy of life or

limb. . . .” In addition, Tenn. Const. art. I, § 10 provides that

“no person shall, for the same offence, be twice put in jeopardy of

life or limb.”

In Ursery, the United States Supreme Court held that

civil forfeiture generally does not constitute punishment for the

purposes of the double jeopardy clause. 518 U.S. at 270-71, 116 S.

Ct. at 2138, 135 L. Ed. 2d at 557. The Court based its decision on

a two-part test, one prong being whether the legislature intended

forfeiture proceedings to be criminal or civil. Id. at 288, 116 S.

Ct. at 2147, 135 L. Ed. 2d at 568-69. The second prong being

whether the forfeiture proceedings are so punitive in form and

effect as to overcome our legislature’s intent and render the

proceedings criminal. Id.

In Stuart v. State Dep’t of Safety, 963 S.W.2d 28, 32

(Tenn. 1998), the Court relied on the two-part Ursery test and held
6Blackmon’s double jeopardy issue is controlled by Stuart

which, in fairness to our brethren, was released subsequent to the

Court of Criminal Appeals’s opinion in this cause.

9

that forfeiture under Tennessee law is an action in rem, which is

traditionally viewed as a civil proceeding. Because the

legislature intended forfeiture to be a civil, in rem proceeding,

the Court held that forfeiture does not impose “punishment” for the

purposes of the double jeopardy clauses of the United States and

the Tennessee Constitutions. Id. at 30. Under Stuart, Blackmon’s

double jeopardy issue is without merit.6

IV

Accordingly, the judgment of the Court of Criminal

Appeals, insofar as it holds that Blackmon consented to the trial

court’s jurisdiction, is reversed. As respects the forfeituredouble jeopardy issue, the judgment of the Court of Criminal

Appeals is affirmed. The cause is remanded to the trial court for

a new trial or other appropriate disposition. Costs of this cause

are taxed against the State, for which execution may issue if

necessary.

____________________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.

Drowota, Holder, Barker, JJ.